Maximizing recovery from transportation losses
The liable parties could include the brokerage coordinating the transport, and/or one or more transportation companies who completed the shipping process. If you consider someone moving from New York City to Hawaii, there will likely be more than one ground shipping company plus the maritime company that transports it across water.
In fact, as a subrogation lawyer licensed in Hawaii, these claims where the insured moved to or from Hawaii are the most common types of subrogation cases he deals with regarding property damage in the course of vehicle transportation. An attorney facing this type of insurance dispute should make sure to ask their insured about every party they dealt with in the course of having their vehicle shipped.
Causes of action in these cases may include contract terms (known as the bill of lading), negligence, or bailment:
As with many contracts, there is often language in the bill of lading that limits liability for the companies involved in shipping the vehicle. The Federal Carriage of Goods by Sea Act may also apply, which also provides protections from liability in maritime and admiralty subrogation. If you find there is language that is unfavorable to your automotive claim, try to find an argument by looking at:
The most common issue a carrier encounters when making a subrogation demand for damage during vehicle transportation is proving the extent of the damages. While some types of damage, like interior water damage, are a little more obvious, minor exterior damage is not. Because there are usually no “before” pictures of the automotive, it can be difficult to prove when the vehicle is delivered that this scratch or that dent is new.
The bill of lading and associated paperwork will often have a general illustration of a vehicle where one can mark all existing damage at the time they take possession of the vehicle, but that is also problematic. These are not detailed and are susceptible to misinterpretation, smudging, etc. Carriers should encourage their insureds to create photographic records of vehicle condition at the time it is transferred from the owner to the coordinator/transporter.
Vehicle transportation will almost always involve more than one state jurisdiction and even include maritime law. According to the Restatement of Conflict of Laws, the rule is usually to file a subrogation lawsuit either (1) where the contract was signed or (2) where the majority of the contract took place.
The issue with vehicle transportation claims is you rarely know exactly where the damage occurred, whether dealing with accidents or negligence. The author advises that the best solution is often to file a subrogation claim in the state where the vehicle was delivered, as this is most convenient because your insured is likely at that location.
Determine the appropriate location to file your claim as soon as possible, though – you do not want to wait too close to the statute of limitations only to find out you filed the lawsuit in the wrong state or that there is some defense that can be brought because of where you chose to initiate a subrogation lawsuit.
This article originally appeared on Rathbone Group. https://www.rathbonegroup.com/
About the Author:
Jason Sullivan is a member partner at Rathbone Group. jsullivan@rathbonegroup.com
Medicare conditional payment fundamentals and ensuring compliance
Jason Sullivan is a Member Partner at Rathbone Group. jsullivan@rathbonegroup.com
CLM’s Subrogation Committee offers a strong platform of educational programs for CLM fellows and members, including corporations, insurance companies, law firms and service providers. It compiles “best practices” for pursuing subrogation recoveries; documents trends and developments in the investigation of property losses; and provides a forum for the defense of subrogation claims.
